In an article in MarketWatch, “What America’s gun fanatics won’t tell you”, Brett Arends contends that the Second Amendment “doesn’t give you the right to own a gun” (June 18, 2016).
By “fanatics” I can only assume the author means me. You know the type, they want to retain the ability to defend themselves, enjoy a nice day at the range, maybe the occasional hunting trip, and obey the law – those fanatics.
This article is another example of the Left rewriting history to suit their narrative. The author contends that at best the Second Amendment only applies to actively serving members of the National Guard, and at worst is completely obsolete. He points, incredibly, to Federalist 29 to support this. He also contends that the militia was to be “under the command of the president” and was to be “the military arm of the government.” To completely document the falsehoods put forth in this article would take much more time and space than I have here, but I’ll try my hand at a few.
The author mentions Justice Scalia but does not mention the Heller decision in which the majority decided that the right to bear arms was an individual right not connected with service in the militia. Heller predates the article by several years, the author was certainly aware of the decision and intentionally left it out.
The National Guard did not exist as presently constituted when the Founders wrote the Constitution. The National Guard as we know it resulted from the Militia Act of 1903 (well over 100 years after the Founding).
The president did not have command of the militia at the time the Second Amendment was written, Congress had the authority to call up the militia. The president was given this authority later in the Militia Act(s) of 1792 and 1795.
The Constitution treats the standing regular army and the militia separately. The standing army was a federal, professional military force of which the Commander-in-Chief was the president. The militia was the state militias (collectively). The Militia Act of 1792 did something else interesting which was not included in the Constitution proper; it defined who the militia was.
If the militia is the various state militias collectively, one might ask what business the federal government had passing legislation to define what it was and how it was to be equipped. To oversimplify, the answer is conscription, standards, and funding.
Time and again from the Founding era to at least the early 20th century, there were significant difficulties every time the federal government called up the militia. Officer and enlisted training varied, as did uniforms and insignia. Different states sometimes had different weapons and other equipment making supply a nightmare. And the number of militia members available was frequently a problem.
It is true that the Federalists and Anti-Federalists had many disagreements about a standing army and the federal government having the power to “nationalize” the state militias. The Constitution proper gives the federal government the authority to call up the militia but it does nothing to guarantee there will be a militia to call up. If a state did not want to provide its militia for federal service for example, what would prevent the state from simply disbanding its militia? The various Militia Acts solve that problem by defining who the militia is – and therefore who can be called up, conscripted, drafted.
The Militia Act of 1903 created the National Guard as we know it today. It also made mention of the militia members not actively serving as “Reserve Militia.” Around the same time, the Director of Civilian Marksmanship (DCM) was created (now known as the Civilian Marksmanship Program – CMP). Why would the federal government have an interest in promoting marksmanship among civilians? Quite simply, they wanted the pool they might draw from in an emergency to know how to shoot; they were training the militia.
It is also true that today active service in the state militia means for the most part service in the National Guard, but this is not exclusively true. Service in the National Guard means federal funding and standards that match the regular army. But several states maintain state militias that are not part of the National Guard.
It seems clear to me, from my reading of history, that “militia” has always meant a citizen reserve. Whether or not they were formally trained or how they were equipped has changed over the years, but the basic idea was always to provide a pool of people that could be called on in an emergency.
Even the article that I refer to here at the start conceded that when we are talking about militias, we are talking about state militias. So, to answer just who it is that constitutes the militia, we can look at the states.
My home state of Washington provides a very clear definition. RCW 38.04.030 defines the militia of the state of Washington as “all able bodied citizens” “residing in the state” who are “more than eighteen years of age.” I think it noteworthy that there is no upper age limit, no mention of sex, and no other qualifications beyond “able bodied.” All those citizens over 18 that are not active members of the National Guard or the State Guard are members of the “unorganized militia” according to state law. So who is the militia? Well, here in Washington it is all of us.